By Paul O. Carrese
ISBN-10: 0226094820
ISBN-13: 9780226094823
Read or Download The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism PDF
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Additional info for The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism
Example text
Justice as right primarily should mean administra- Moderate and Juridical Government [ 37 ] tion of proper procedures, since these forms and formalities protect the security and tranquillity of individuals. 1 Such criticisms early in the work indicate that, while Montesquieu endorses complex conceptions of judging and law, he does so with open eyes. Such thoughts call to mind recent complaints in America about excessive litigation as “the death of common sense,” for impeding commerce and efficiency, but Montesquieu’s warnings point to deeper themes in his constitutionalism.
An Aristotelian tradition that refines prudential and moral judgment differs, however, from a social science that views discrete acts and cases as part of a “spirit” of law, a spirit that well may need humane reform. Montesquieu’s candid remarks on litigation develop these themes. 35). Montesquieu harbors no illusions about the character of such litigants or the injustices they perpetrate. 2, 310). This line of argument redefines justice, perhaps the central concept of politics and political philosophy, just as his 1757 “Notice” to the work indicates his intention to redefine virtue.
The prince’s council is not a suitable depository. By its nature it is the depository of the momentary will of the prince who executes, and not the depository of the fundamental laws. Moreover, the monarch’s council constantly changes; it is not permanent; it cannot be large; it does not sufficiently have the people’s trust: therefore, it is not in a position to enlighten them in difficult times or to return them to obedience. 4, 249) 45 These are properly judicial and not legislative duties, since they are passive and reactive limitations on sovereign power.